Carvalho v. Lotus Residence LLC

Carvalho v Lotus Residence LLC

2025 NY Slip Op 31764(U)

May 14, 2025

Supreme Court, Kings County

Docket Number: Index No. 523886/2020

Judge: Steven Z. Mostofsky

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.

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At an IAS Term, Part 9, of the Supreme Court of the

State

of New York, held in and for the Coun ty of Kings,

at the

Courthouse, at 360 Adam s Street, Brooklyn, New York

on

the 14th Day of May, 2025.

PRE S ENT :

HON . STEV EN Z. MOS TOF SKY ,

Justice.

---------------- ------ --- --- ------ --- --- ------ ------ ------ -X

VINI CIUS COU TO CAR VAL HO,

Plaintiff,

-against-

Inde x No.: 523886/2020

LOTUS RES IDEN CE LLC AND

RIVE RSID E DEV ELO PER S USA INC. ,

Defe ndan ts.

------------------------------------- ------ --- ------ --- --- -X

The following e-filed papers read herein:

NYS CEF Doc Nos.:

Notice of Moti on/O rder to Show Cause/ I

Petition/Cross Motion and

Affidavits (Affirmations) Anne xed

Opposing Affid avits (Affirmations)- ----- 72-131

_ _ _ __ 103-121

Affid avits / Affirmations in Reply_ _ _ _ __

Exhibits 126-128

--------------- Var.

Vinicius Cout o Carvalho ("pla intiff ') commenced

an action against defen dants , Lotus

Residences LLC ("Lotus"), and Riverside Developer

s USA Inc., ("Riverside"), alleging that

defen dants violated Labo r Law § 240(1 ), and § 241

(6). I

Defe ndan ts, Lotus and Riverside, cross-move, seeki

ng summary judg ment dismissing

plaintiff's complaint that they violated Labo r Law

§ 240(1), § 241(6), and § 200.

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Statement of Facts

On September 6th, 2019, plaintiff alleges that while emplo

yed by Magellan Concrete

Structures Inc., ("Magellan"), he sustained injuries as a result

of slipping and falling down a

portable wood en ladde r while going from the first floor to

the basement. Lotus was the owner of

the worksite, 3 78 Flushing A venue, Brooklyn, New York,

and the general contractor onsite was

Riverside. Plaintiff was employed by Magellan as a gener

al carpe nter setting up decks and

staircases, as well as working with cement. Plaintiff allege

s that the ladde r was maintained in a

wet and slippery condition due to rain on the day of the

alleged incident. After the alleged

incident, plaintiff was taken to Wood ull Medical Center,

Brooklyn, New York.

Legal Standard

'"[S]ummary judgm ent is a drastic remedy and should not

be granted where there is any

doubt as to the existence of a triable issue"' (Rotuba Extru

ders, Inc v Ceppos, 46 NY2d 223, 231

[1978], quoting Moskowitz v Garlock, 23 AD2d 943 [3rd

Dept 1965]). "[T]he proponent of a

summary judgment motion must make a prima facie show

ing of entitlement to judgment as a

matter of law, tendering sufficient evidence to demonstrat

e the absence of any material issues of

fact" (Alvarez v Prospect Hospital, 68 NY2d 320,3 24 [1986

], citing Winegrad v New York Univ

Med Center, 64 NY2 d 851 [1985]) and "facts must be viewe

d 'in the light most favorable to the

non-moving party "' (Vega v Restani Const Corp, 18 NY3

d 499, 503 [2012]). The court's

function is to determine "material triable issues of fact (or

point to the lack thereof)" (Vega v

Restani Const Corp, 18 NY3 d at 505).

Labor Law § 240(1)

Labor Law§ 240(1), which provides, in pertinent part, as

follows::

"All contractors and owners and their agents ... who contr

act for but do not direct or

control the work, in the erection, demolition, repairing, [or]

altering ... of a building or

structure shall furnish or erect, or cause to be furnished or

erected for the performance of

such labor, scaffolding, hoists, stays, ladders, slings, hange

rs, blocks, pulleys, braces,

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irons, ropes, and other devices which shall be so constructed

, placed and operated as to

give proper protection to a person so employed."

I

It is, by now, well established that the duty imposed by

Labo r Law§ 240(1) is non-

delegable and that an owne r or contractor who breaches

that duty may be held liable for damages

regardless of wheth er it has exercised supervision or contr

ol over the work (Ross v Curtis-

Palmer Hydro-Electric Co., 81 NY2d 494, 500 [1993 ]).

The purpose of Labo r Law §240(1) is to

protect construction workers "from the pronounced risks

arising from construction work site

elevation differentials" (Runner v New York Stock Exch.,

Inc., 13 NY3 d 599, 603 [2009]). The

worker's injuries have to be a direct consequence of failur

e to adequately protect against risk

arising from physically significant elevation differential

(Id.). In other words, Labor Law §

240(1) was designed to prevent those types of accidents

in which the scaffold, hoist, stay, ladder,

or other protective device proved inadequate to shield the

injured worker from harm directly

flowing from the application of the force of gravity to an

object or person (Ross v Curtis-Palmer

Hydro-Electric Co., 81 NY2d 494,5 01 [1993]). The right

ofrec overy affor ded by the statute

does not extend to other types of harm, even if the harm

in question was caused by an

inadequate, malfunctioning, or defectively designed scaffo

ld, stay, or hoist (Id.).

Whether a device provides proper protection is a question

of fact, except when the device

collapses, moves, falls, or otherwise fails to support the

plaintiff and his or her materials

(Melchor v Singh, 90 AD3 d 866, 868 [2d Dept 2011]). A

fall from a ladder, by itself, is not

sufficient to impose liability unde r Labor Law § 240 (1)

(Id.). There must be evidence that the

subject ladde r was defective or inadequately secured and

that the defect, or the failure to secure

the ladder, was a substantial facto r in causing the plaintiff's

injuries (Id.).

Plain tiff was engaged in one of the enumerated activities

I

unde r Labor Law 240(1 ), as he

was performing construction work while on a ladder. Plain

tiff's accident was gravity related as

he fell from a height from the second or third rung of the

ladder, which was approximately ten

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(10) feet (NYSCEF Doc. No. 96 at p. 2). Plaintiff allege

s that his injuries were sustained as a

direct result of failing to provide adequate protection again

st the risk of falling from the ladder,

which became slippery and dirty from the rain (NYSCEF

Doc. No. 111 at p. 45-46).

In Milligan v Tutor Perini Corp., 191 AD3 d 437 [1st Dept

2021], the court held that

plaintiff established prima facie that plaintiff's work expos

ed him to an elevation-related risk

against which defen dants failed to provide him with prope

r prote ction, as required by Labor Law

§ 240(1 ). Plain tiff testified that he was injured when he

fell while using a wet and slippery

wooden ladde r provided by defen dants for him to move

betwe en the tenth and eleventh floors of

the construction site to perform his work (Id.). Therefore, I

Plain tiff was not required to show that

the ladde r was inherently defec tive (Id.; see McCarthy v

Turner Constr., Inc., 52 AD3 d 333 [1st

Dept 2008]).

Plain tiff established that he was going from the first floor

to the basement using a

wood en ladde r (NYS CEF Doc. No. 111 at p. 44-45), the

ladde r was wet due to the rain (Id.),

and as plaintiff was coming down the ladder, he slipped

and fell from a height of approximately

ten (10) feet (Id. at 46) as a result. While plaintiff was weari

ng a harness, hard hat, and synthetic

gloves (NYSCEF Doc. No. 75 at p. 45), plaintiff's emplo

yer still sent plain tiff out in the rain to

work on a wet ladde r despite the known risk of falling while

working at height of approximately

ten (10) feet in inclement weather. Given the weather condi

tions, plaintiff should not have been

using the ladder. Therefore, plain tiff was exposed to an

elevation-related risk against which

defendants failed to provide him with proper protection.

Defen dants contend that their lack of supervision of plain

tiff at the worksite exculpates it

from the absolute liability for failure to furnish or erect safety

devices that are necessary to

protect workers from sustaining fall-related injuries. Aaron

Goldberger, the project manager for

Riverside, testified that he did not recall any issues with

the job-built ladders, that the decision to

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work in the rain was at Magellan's discretion, and that he

was not responsible for determining

whether Magellan workers should stop work due to the rain

(NYSCEF Doc. No. 74 at p. 4).

Furthermore, defen dants argue that plaintiff's accident and

resulting claims arose from his use

own use of the ladder, that all necessary safety equipment,

including a harness, hardhat, gloves,

and goggles, were available, and plaintiff has failed to establ

ish that he fell from any significant

height. However, the defen dants ' contentions fail, and while

plain tiff has established a prima

facie case, the defen dant has failed to show that a mater

ial issue of fact exists. In Blake v.

Neighborhood Haus. Servs. ofN. Y City, Inc., 1 N.Y.3d 280,2

87 [2003], the Court of Appeals

held:

Liability unde r Labor Law § 240 (1) as "absolute" in the

sense that owners or contractors

not actually involved in construction can be held liable (see

Haimes v New York Tel. Co.,

46 NY2 d 132, 136 [1978]), regardless of whether they exerc

ise supervision or control

over the work (see Ross v Curtis-Palmer Hydro-Elec. Co.,

81 NY2 d 494,5 00

[1993]). Intending the same meaning as absolute liability

in Labor Law§ 240 (1)

contexts, the Court in 1990 introduced the term "strict liabili

ty" (Cannon v Putnam, 76

NY2d 644,6 49 [1990]) and from that point on used the

terms interchangeably.

Furthermore, once a court determines that an owner or contr

actor has failed to furnish or

erect the requisite safety devices, absolute liability results

even where the owne r or contractor

has exercised little or no supervision, control, or direction

over the injury-producing work

(Haimes v. New York Telephone Co., 46 N.Y.2d 132, 137

[1978]. Therefore, defendants, Lotus

and Riverside, have failed to meet their prima facie burde

n under Labor Law § 240 (1) that their

lack of supervision of plaintiff at the work site exculpates

them from the absolute liability for

failing to provide safety devices.

Plaintiff has therefore met its prima facie burden under 240(1

), as the papers before the

I

court do not indicate that plaintiff was provided with an

appropriate ladder, safety netting, or any

other device that would have prevented him from falling

by the defendants. Therefore, the court

grants plaintiff's motion seeking summary judgment (Mot.

Seq. 4) on the issue of liability under

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Labor Law § 240(1), and defen dants ' motion for summary

judge ment (Mot Seq.3) under Labor

Law § 240(1) is denied.

Labor Law § 241(6)

Labor Law§ 241(6) "imposes a [non-delegable] duty ofrea

sonab le care upon owners and

contractors to provide reasonable and adequate protection

and safety to persons employed in, or

lawfully frequenting, all areas in which construction, excav

ation, or demolition work is being

perfonned" (Song v. CA Plaza, LLC, 208 AD3d 760, 761

[2d Dept 2022] [internal quotation

marks omitted]). "To establish liability, a plaintiff must demo

nstrate that his injuries were

proximately caused by a violation of an applicable Indus I

trial Code provision" (Graziano v.

Source Builders & Consultants, LLC, 175 AD3 d 1253,

1258 [2d Dept 2019], quoting Arag ona v.

State ofNew York, 147 AD3d 808, 809 [2d Dept 2018]

).

A party must breach a "specific, positive command" rather

than a "reiteration of

common-law standards" (Ross v Curtis-Palmer Hydro-Elec

. Co., 81 NY2 d 494, 502 [1993]).

Ross distinguished betwe en Code provisions "mandatin

g compliance with concrete

specifications and those that establish general safety stand

ards" (Id. at 505).

In their motion to dismiss, defendants, Lotus and Riverside,

have made a prima facie

showing that the following industrial codes were not violat

ed:

Industrial Code § 23-1.5: References "General responsibil

ity of employers." Defendants

have established that Industrial Code § 23-1.5 cannot be

a basis for liability, as the standard of

liability unde r§ 241(6) requires that a plaintiff must demo

nstrat e that his or her injuries were

proximately caused by a violation of a New York State Indus I

trial Code provision that is

applicable given the circumstances of the accident and sets

forth a concrete standard of conduct

rather than a mere reiteration of common-law principles

(Ross v Curti s-Pal mer Hydro-Elec. Co.,

81 NY2d 494, 501-502 [1993]). Furthermore, Industrial

Codes 23-1.2, 23-1.3, and 23-1 .5-ar e

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too general to support a Labor Law § 241 (6) claim

(Huether v New York Times Bldg., LLC, 24

Misc 3d 634, 648 [Sup Ct 2009]). The court notes that I

plaintiff did not raise this section in their

papers.

Industrial Code § 23-1.7(e): References "Tripping and

other hazards." Defendants have

established that this section is inapplicable, as plaintiff

slipped while descending a wet ladder.

Additionally, defendants have established that the alleg

ed incident did not result from the

accumulation of dirt and debris or from any other obstr

uctions or conditions which could cause

tripping, as plain tiff slipped while descending a wet

ladde r.

Industrial Code § 23-1.11: References "Lumber and

nail fastenings." Defendants have

established that this section is inapplicable as there is

no testimony suggesting any defect in the

wood, lumbar, or nails used for the ladder. The court

notes that plaintiff did not raise this section

in their papers.

Industrial Cod e§ 23-1.15: References "Safe ty railin

gs." Defendants have established

that this section is inapplicable as safety railings were

not in use for plaintiff's work. The ladde r

that plaintiff was using was built specifically by his

employers, and plaintiff did not testify to

using any safety railings for the work being performed I

. The court notes that plaintiff did not raise

this section in their papers.

Industrial Code § 23-1.16: References "Safety belts,

harnesses, tail lines, and lifelines",

but "does not specify when such safety devices are requi

red" (Thompson v Sithe/lndep., LLC,

107 AD3 d 1385, 1388 [4th Dept 2013]). Plaintiff testif

ied that he was wearing his harness, a

hard hat, and synthetic gloves while descending the

ladde r (NYSCEF Doc. No. 75 at p. 45),

therefore, this section is inapplicable.

Industrial Cod e§ 23-1.21: References "Lad ders and

ladderways," including general

ladde r maintenance and when such ladders should be

used. Plaintiff testified that he did not have

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any difficulty going up and down the ladde r before

the alleged accident and the ladde r had been

in the same position for four days (NYSCEF Doc. No.

75 at p. 46, 49). Additionally, plaintiff did

not testify that there had been any defects regarding

the ladde r he used. Furthermore, while the

footings might have been on a slippery surface becau

se of the rain, the proximate cause of the

accident was due to the plaintiff slipping off of a wet

ladder. Therefore, this section is

inapplicable.

Industrial Cod e§ 23-1.30: References "Illumination."

Defendants have established that

the alleged accident occurred in the afternoon between

3:30 and 4:30 P.M. (NYSCEF Doc. No.

75 at p. 43), and there is no testimony of poor illuminatio I

n. The court notes that plaintiff did not

raise this section in their papers.

Industrial Code § 23-2.1: References "Maintenance

and housekeeping." The accident did

not involve the obstruction of a "passageway, walkway,

stairway or other thoroughfare" by a

material pile and, therefore, 23-2 .l(a) (l) is not appli

cable (Ginter v Flushing Terrace, LLC, 121

AD3 d 840, 844 [2d Dept 2014]). 23-2 .l(a)( 2) provi

des, in relevant part, that "material and

equipment shall not be placed or stored so close to any

edge of a floor, platform or scaffold as to

endanger any person beneath such edge." Industrial

Code 23-2.l(a)(2) is inapplicable because

plaintiff was not struck by an object that fell from store

d material on the floor above him.

Plaintiff claims he was struck by an item he had just

passed up, not which was stored at the edge

of a floor (See Mahoney v Madeira Assoc., 32 AD3 d

1303, 1305 [4th Dept 2006]). Lastly, 23-

2 .1 (b) is inapplicable because the disposal of debris

was not involved in the instant matter.

Industrial Code § 23-2.2: References "Concrete work

." The defendants have established

that this section is inapplicable, because plaintiff does

not claim he was injured because a form,

shore, or re-shore was improperly "braced or tied toget

her to maintain position or shape."

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Plaintiff was injured due to falling off of a ladder. The court

notes that plain tiff did not raise this

section in their papers.

I

Industrial Code 23-2.7: References "Stairway requiremen

ts during the construction of

buildings." Specifically, 23-2.7(e), requires protective railing

s on stairways. The defendants have

established plaintiff's alleged accident occurred on a ladde

r, not a stairway.

Industrial Code § 23-3.3: References "Demolition by hand.

" The defen dants have

established that this section is inapplicable as the building

was not being demolished. The court

notes that plaintiff did not raise this section in their paper

s.

OSH A Regulations: Defendants have established that OSH

A Regulations are

inapplicable, as OSH A Regulations do not provide a basis

of liability under Labor Law 241(6)

(Greenwood v Shearson, Lehm an & Hutton, 238 AD2d

311, 313 [2d Dept 1997]). The court

notes that plaintiff did not raise this section in their paper

s.

Plaintiff has made a prima facie showing that the defend

ants, Lotus and Riverside,

violated the following New York Industrial Code Rule:

Industrial Code § 23-1.7: References "Protection from gener

al hazards." More

specifically, § 23-l. 7(d) "Slipping hazards" states:

"Employers shall not suffer or permit any employee to use

a floor, passageway, walkway,

scaffold, platform or other elevated working surface which

is in a slippery condition. Ice,

snow, water, grease, and any other foreign substance which

may cause slippery footing

shall be removed, sanded, or covered to provide safe footin

g."

Plaintiff has established that he slipped off the wet ladde

r because it was raining (NYSCEF Doc.

No. 91 at p. 45-46), the rain began before the incident and I

workers were told to continue working

unless the rain got worse (NYS CEF Doc. No. 98 at p. 3).

Therefore, defen dants ' motion seeking summary judgm ent

(Mot. Seq. 3) on Plaintiff's

Labor Law§ 241(6) is denied except that the court holds

that defen dant did not violate the

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following Indus trial Code secti ons:§ 23-1.5; § 23-1.

7(e); § 23-1.11; § 23-1.15; § 23-1.16; § 23-

1.21; § 23-1.30; § 23-2.1; § 23-2.2; § 23-2.7; § 23-3.

3; and OSH A Regulations. Plain tiff's

motion seeking summary judg ment on the issue of

liability unde r Labo r Law § 241(6) (Mot. Seq.

4) is granted to Indus trial Code secti on§ 23-1.7(d).

Labor Law § 200

"'Lab or Law § 200 is a codification of the common-la

w duty imposed on owners,

contractors and their agents to prov ide workers with

a safe place to work "' (Mondragon-Moreno

v Sporn, 189 AD3 d 1574, 1576 [2d Dept 2020], quoti

ng Doto v Astoria Energy 11, LLC, 129

AD3 d 660, 663 [2d Dept 2015]). '"Cas es involving

Labo r Law § 200 fall into two broad

categories, namely, those where workers are injure

d as a result of dangerous or defec tive

premises conditions at a work site and those involving

the manner in which the work is

perfo nned "' (Southerton v City of New York, 203 AD3

d 977, 979-98 [2d Dept 2022], quoting

Torres v City of New York, 127 AD3 d 1163, 1165 [2d

Dept 2015]).

Where plaintiffs allege that their injuries result from

the means or meth ods by which

work is perfo rmed , "to be held liable unde r Labo r

Law § 200, 'a defen dant must have the

authority to exercise supervision and control over the I

work "' (Narvarra v Hannon, 197 AD3 d

474, 476 [2d Dept 2021], quoting Torres v City of

New York, 127 AD3 d at 1165). "Alth ough

property owners often have a general authority to overs

ee the progress of the work, mere general

supervisory authority at a worksite for the purpose

of overseeing the progress of the work and

inspecting the work prod uct is insufficient to impo

se liability unde r Labo r Law § 200" (Medina-

Arana v Henry Street Property Holdings, LLC , 186

AD3 d 1666, 1668 [2d Dept 2020], quoting

Ortega v Puccia, 57 AD3 d 54, 62 [2d Dept 2008])).

Wher e a plaintiff's injuries stem not from

the manner in whic h the work was being performed

, but, rather, from a dangerous condition on

the premises, an owne r may be held liable in comm

on-law negligence and unde r Labo r Law §

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200 if it had contr ol over the work site and eithe r

creat ed the dang erous cond ition that cause d the

accid ent or had actua l or const ructi ve notic e of the I

dang erous cond ition that cause d the accid ent

(Azad v 270 5th Realty Corp., 46 AD3 d 728, 730 [2d

Dept 2007]).

Defe ndan ts have made a prim a facie show ing of

entitl emen t for summ ary judgm ent on

their Labo r Law § 200 claim, and plain tiff does not

oppo se the relief. Here , defen dants , Lotu s

and Rive rside established entitl emen t to summ ary

judgm ent becau se Aaro n Gold berge r, the

project mana ger on beha lf of Rive rside , did not have

actual or const ructiv e notic e of the

dang erous cond ition that cause d the accident. Mr.

Gold berge r testif ied that he did not hear abou t

the accid ent on the day of the accid ent but withi n I

a mont h of testif ying at the depo sition

(NYS CEF Doc. No. 76 at p. 19). Addi tiona lly, Mr.

Gold berge r testif ied that he hims elf had

walk ed on that ladde r and neve r recalled any probl

em with the job-b uilt ladde rs (Id. at 28). Lotu s

and Rive rside neith er contr olled the mann er or meth

od in whic h plain tiff work ed. Mr.

Gold berge r testif ied that it was Mage llan's decis ion

in controlling their mean s and meth ods of

work to decid e whet her to work if it rained or not

(Id. at 28-30). The c

Therefore, the court grant s the defen dants motio n

for summ ary judg ment (Mot. Seq. 3)

dismissing the Labo r Law § 200 claim.

Conclusion

Plain tiff's moti on seeki ng summary judg ment on

the issue of liability unde r Labo r Law §

240(1) (Mot. Seq. 4) against the defen dants ' is grant

ed. Plain tiff's motio n seeki ng summary

judg ment on the issue of liability unde r Labo r Law

§ 241(6 ) (Mot. Seq. 4) is grant ed to Indus trial

Code secti on§ 23-1. 7(d).

I

Defe ndan ts' moti on seeki ng summ ary judg ment

(Mot. Seq. 3) on Plain tiff's Labo r Law §

241(6) is denie d excep t that the court holds that defen

dant did not viola te the follo wing Indus trial

Code secti ons:§ 23-1.5; § 23-1.7(e); § 23-1. 11; §

23-1.15; § 23-1. 16; § 23-1. 21; § 23-1. 30; § 23-

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2.1; § 23-2.2; § 23-2.7; § 23-3.3; and OSHA Regulations. Defendants' motion seeking summary

judgment dismissing plaintiff's Labor Law§ 200 claim is granted (Mot. Seq. 3).

Any other claims not specifically addressed in this decision are denied.

This constitutes the decision and order of the Court.

ENT~ --

J.S.C

Hon. Steven z. Mostofsky

Justice, Supreme Court

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